The Legality of DACA: Recent Litigation Developments
Legal Sidebari
The Legality of DACA: Recent Litigation
Developments
Updated September 20, 2023
On September 13, 2023, a federal district court held that a 2022 Department of Homeland Security (DHS)
rule that seeks “to preserve and fortify” the agency’s long-standing Deferred Action for Childhood
Arrivals (DACA) policy was unlawful. Since 2012, certain unlawfully present non-U.S. nationals (aliens,
as the term is used in the Immigration and Nationality Act [INA]) who entered the United States as
children have been permitted to remain and work in this country for renewable two-year periods under the
DACA initiative. During the Trump Administration, DHS sought to rescind DACA on the basis that it was
unlawful. Several federal district courts enjoined DHS from terminating DACA and required the agency
to continue accepting DACA applications and work authorization requests from current DACA recipients.
In 2020, the Supreme Court held that DHS’s rescission of DACA violated procedural requirements in
federal law, thereby leaving DACA largely intact, without deciding on the legality of DACA itself.
In a separate and ongoing case, the State of Texas (joined by eight other states) challenges the legality of
DACA. The plaintiffs rely on a 2015 decision by the U.S. Court of Appeals for the Fifth Circuit (Texas I)
ruling that a related initiative, which would have expanded DACA and granted relief to unlawfully
present parents of U.S. citizen or lawful permanent resident (LPR) children, was unlawful. In the current
case—commonly called Texas II—a federal district court ruled on July 16, 2021, that the 2012 DHS
memorandum establishing DACA was similarly unlawful. On October 5, 2022, the Fifth Circuit affirmed
that decision but ordered the district court to review a final rule that DHS had promulgated during the
pendency of the litigation that codifies the DACA policy set forth in the 2012 DHS memorandum. On
September 13, 2023, the district court held that the final rule is also unlawful because it contains the same
substantive deficiencies as the 2012 DACA memorandum. Under the terms of a previous order, DHS is
barred from adjudicating new DACA applications, but may continue to administer the program for
current recipients while litigation continues.
This Legal Sidebar examines the status of and key issues in the Texas II litigation. For further background
about DACA, see CRS Report R46764, Deferred Action for Childhood Arrivals (DACA): By the
Numbers, by Andorra Bruno.
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What Is the Current Status of DACA?
The district court’s July 16, 2021, ruling in Texas II had invalidated (or, in legal terminology, “vacated”)
the DACA program set forth in the 2012 DHS memorandum. The court also issued an injunction barring
DHS from administering the DACA program. However, noting that DACA recipients have relied on the
DACA initiative and its associated benefits for nearly a decade, the district court temporarily stayed the
ruling as it applies to current DACA recipients pending an order from the district court, the Fifth Circuit,
or the Supreme Court, on further review.
On August 24, 2022, while the government’s appeal was pending, DHS issued a final rule that “preserves
and fortifies” the DACA policy in federal regulations. The final rule was to go into effect on October 31,
2022.
On October 5, 2022, the Fifth Circuit affirmed the district court’s ruling that the original DACA program
is unlawful. The court continued the district court’s stay of its ruling that allows existing DACA recipients
to maintain their status pending further appeal in the case. The Fifth Circuit also remanded the case to the
district court to consider the legality of DHS’s final rule codifying the DACA program in federal
regulations in light of the Fifth Circuit’s decision. Upon remand, the parties agreed that the final rule
would not become effective until the district court issued its decision.
On September 13, 2023, the district court held that the 2022 final rule is unlawful and applied its previous
orders to vacate and enjoin implementation of the DACA memorandum to the 2022 rule. However, the
temporary stay of those orders for current DACA recipients remains in effect.
As a result, current DACA recipients may retain their status and lawfully remain and work in the United
States for the time being. They may also apply to renew their status every two years and seek permission
to travel abroad and return to the United States pursuant to “advance parole.” On the other hand, the
district court’s decision bars DHS from approving new, first-time DACA applications and granting status
to those applicants pending the outcome of the litigation (but the court’s order does not bar DHS from
accepting new applications for processing as required under a separate district court order). Consequently,
applicants (or prospective applicants) who have not yet obtained DACA status cannot be granted it while
the district court’s decision remains in place.
What Are the Main Legal Issues in Texas II?
The salient issue in Texas II is whether DHS has authority to implement DACA. The INA establishes an
intricate scheme of restrictions as to which categories of aliens may enter or remain in the United States
and under what conditions. Has DHS violated that scheme of restrictions, or its constitutional duty under
the Take Care Clause to pursue faithful execution of those restrictions, by implementing a program with
potential to provide temporary relief from removal, work authorization, and other benefits to more than 1
million persons whose presence violates the INA? Or does DACA fall within the scope of the
enforcement discretion that DHS, like all federal enforcement agencies, enjoys to allocate its
prosecutorial resources in the manner that the agency determines best serves the national interest,
particularly given that the number of unlawfully present aliens in the United States far exceeds DHS’s
removal capacity for any given year?
In its 2022 final rule, DHS addressed public comments about DACA’s legality. DHS argued that DACA
does not violate the INA because it merely confers—as an exercise of the executive branch’s enforcement
discretion—a “discretionary, temporary, and nonguaranteed reprieve from removal” and creates no legally
enforceable right for aliens to remain in the United States under a “blanket grant of lawful immigration
status.”
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The Fifth Circuit’s October 5, 2022, decision in Texas II held that DACA, as set forth in the 2012
memorandum, conflicts with the INA’s regulatory scheme because it “creates a new class of otherwise
removable aliens who may obtain lawful presence, work authorization, and associated benefits” that
Congress never authorized. The Fifth Circuit also rejected the government’s assertion that DACA is a
proper exercise of DHS’s discretion over immigration enforcement, reasoning that such discretion does
not encompass the ability to confer lawful presence and associated benefits to removable aliens. Other
federal courts reasoned to the contrary in lawsuits related to the Trump Administration’s efforts to
terminate DACA (those decisions, however, are no longer good law after the Supreme Court ultimately
struck down the termination on other grounds, as discussed below).
On remand from the Fifth Circuit, the district court in Texas II determined that DHS’s 2022 final rule
substantively “remains the same” as the 2012 DACA memorandum, and therefore “suffers from the same
legal impediments” as that memorandum. For that reason, the court held that the 2022 rule is subject to
the district court’s and the Fifth Circuit’s previous rulings that DACA, as set forth in the 2012
memorandum, is unlawful.
How Does Texas II Relate to the 2020 Supreme Court
Decision About DACA (DHS v. Regents of the University
of California)?
The Regents case concerned the legality of DHS’s 2017 decision to rescind DACA. Several lower courts
held that the rescission was likely unlawful under the “arbitrary and capricious” standard of the APA
because DHS had not “adequately explained” the reasons for the rescission. In its 2020 decision, the
Supreme Court agreed that DHS had offered insufficient reasoning in support of its DACA rescission
(though the Court observed that DHS could end DACA if it provided an adequate explanation and
satisfied any other procedural requirements). In contrast, the Texas II litigation concerns the legality of
DACA itself, an issue that the Supreme Court did not address in Regents. In short, the Texas II case is
about the legality of DACA, while Regents concerned the legality of DACA’s termination.
How Does Texas II Relate to the Texas I Litigation
Concerning the Deferred Action for Parents of
Americans and Lawful Permanent Residents (DAPA)
Initiative?
In 2014, two years after the DACA initiative was launched by the Obama Administration, DHS
announced a two-part initiative that would have (1) expanded DACA to cover more childhood arrivals
and extended the deferred action period from two to three years, and (2) granted similar relief to certain
unlawfully present aliens with children who are U.S. citizens or LPRs (DAPA). In 2015, the Fifth Circuit
held that this initiative likely violated federal law because DHS failed to comply with notice and comment
procedures when it created this expanded initiative, and the broad relief and associated benefits conferred
by the initiative conflicted with “the INA’s system of immigration classifications and employment
eligibility.” An equally divided Supreme Court affirmed in 2016. The case did not concern the legality of
the original DACA program.
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The Texas II litigation, on the other hand, strictly concerns the legality of the original DACA program,
both as it was implemented in 2012, and, more recently, as it has been codified in federal regulations.
Previously, in ruling that the 2012 DACA memorandum is unlawful, both the district court and the Fifth
Circuit determined that the Fifth Circuit’s reasoning in Texas I—that DHS’s implementation of DAPA and
expansion of DACA violated the INA’s statutory scheme because it exceeded the existing framework for
conferring lawful presence and associated benefits—equally applied to the implementation of DACA.
What Options Does Congress Have?
As with most immigration issues, Congress has ultimate authority to decide the future of DACA
legislatively and is not required to wait for a resolution to the Texas II litigation. Congress could terminate
DACA by defunding it or through substantive legislation that clearly prohibits DHS from granting the
types of protections that the program provides. Conversely, Congress could enact a law granting DHS the
authority to implement DACA and other programmatic deferred action programs that confer collateral
benefits. Or, along the lines of the American Dream and Promise Act of 2023 (H.R. 16), or the
DIGNIDAD Act of 2023 (H.R. 3599), Congress could grant DACA recipients (and, if it wishes, other
childhood arrivals and other groups of unlawfully present aliens) statutory relief. Such relief could
include, among other possibilities, protection from removal, eligibility for specified benefits, and a
pathway to LPR status. More broadly, Congress could consider legislative options that generally address
the unlawfully present population at large, such as a 2021 proposal to “parole” unlawfully present aliens
who meet certain requirements and allow them to remain and work in the United States for renewable
periods of time.
Author Information
Hillel R. Smith
Legislative Attorney
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